Grant of legacy to a creditor

Persida Acosta

Persida Acosta

Dear PAO,
Several years ago, my father lent a big amount of money to his brother whom he was very close to. This uncle of mine used the money that he borrowed from my father for the renovation of his house in the province. After a few years, my uncle passed away without being able to pay my father back. We still have a copy of the promissory note that my uncle made, which proves his debt to my father. I gave this promissory note to the administrator of my uncle’s estate with the intention of collecting the amount owed to my father. The administrator told me not to worry since the last will of my uncle includes my father as among those who will receive money from my uncle’s estate.

I saw a copy of my uncle’s last will, and I was able to confirm that my father was indeed named to receive a generous amount of money for “being an exemplary and caring brother” as the last will mentioned. Because of this, I want to know if the money that will be received by my father as inheritance is already the payment of my uncle’s debt, or is this still separate from what he owes my father. In other words, can we still collect from my uncle’s estate even if my father will be given an inheritance from my uncle’s last will? We hope for your advice.

Dear Dan,
It appears that your concern is whether your father can still collect from the estate of his brother in spite of being given money from the latter’s last will. To answer your concern, we must first establish legal relationship between your father and your uncle in terms of testamentary succession.

According to the Civil Code, legatees are persons to whom gifts of personal property, which is called legacy, is given through a last will and testament (Article 782, Ibid.) Since your father is given a legacy in the form of money through your uncle’s last will, your father appears to be the legatee of your uncle. And considering the debt of your uncle to your father, it is clear that your father is both a creditor and legatee of your uncle.
With regard to the right of a creditor who receives a legacy from his debtor, the law states:

Article 938. A legacy or device made to a creditor shall not be applied to his credit, unless the testator so expressly declares.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or device. (837a)

This cited law points out that the legacy given to a creditor is different from the money owed to him. A legacy can only be considered as payment to a creditor if the testator expressly states this to be his intention in giving the legacy. Otherwise, the creditor may still collect from the testator’s estate notwithstanding the legacy granted to him.

As you mentioned in your father’s situation, your uncle made your father a legatee for “being an exemplary and caring brother,” not because of the money he owed your father. Therefore, absent specific mention of your uncle’s intention to pay your father through the legacy, your father may still collect from your uncle’s estate for the money owed to him, if he chooses to do so.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


Leave A Reply